Basic Education Minister Angie Motshekga. Picture: TREVOR SAMSON
Basic Education Minister Angie Motshekga. Picture: TREVOR SAMSON

THE Department of Basic Education confirmed on Friday that it will go as far as changing the law in order to ensure that the power to determine whether a school has reached capacity remains in the hands of provincial education departments.

This follows an ongoing Constitutional Court battle between the Gauteng provincial education department and the Rivonia Primary school governing body, which was in 2010 compelled to accept a pupil despite maintaining capacity.

Basic Education Minister Angie Motshekga said this week that her department would join a case as a friend of the court, as the Gauteng provincial education department seeks to overturn a Supreme Court of Appeals ruling in November that the power to determine capacity remained firmly in the school’s hands.

Ms Motshekga was reported as saying on Wednesday that in hindsight some powers may have been wrongly allocated to school governing bodies.

Department of Basic Education spokesman Panyaza Lesufi confirmed on Friday that changes to the law were being considered should the appeal fail.

But Mr Lesufi said such as move was would not be about "tampering with the rights" of school governing bodies to run schools, which would remain intact.

School governing bodies did not have a "bird’s eye view" of pupil numbers, and provincial education departments were required to fill schools to capacity in order to meet their obligations to pupils, he said.

Interest groups have acknowledged a need for schools to accept pupils until capacity, but have expressed deep concern over the possible impact of legislating the provincial intervention at schools.

The South African Teachers’ Organisation said on Thursday that such "draconian measures" could allow for undue interference by officials in schools that were an "extension of the community".

"The minister’s statement in this regard is alarmingly reminiscent of the dark days of apartheid when the state abused its parliamentary powers like a blunt crowbar and intervened and prescribed in terms of a particular political ideology how schools should be run," the statement read.

Mr Lesufi said further any changes to the law would come only after extensive consultation.

The CEO of the Federation of Governing Bodies of South African Schools, Paul Colditz, said on Friday the removal of the power of governing bodies to have the final say on whether the quality of teaching and learning would decrease with the inclusion of more pupils, would render all other powers "meaningless".

No changes were necessary to the laws in order to ensure that schools accepted pupils, as there were already provisions in place to act against schools that were acting unreasonably, for instance refusing to accept pupils despite clearly having capacity, he said.

He said his organisation was highly concerned about placing such power in the hands of bureaucrats, and it should be noted the Department of Basic Education had been forced to take over the administration of two provinces.